Governmental Immunity: Recent Developments Concerning the 11th Amendment and the Kansas Tort Claims Act

JurisdictionKansas,United States
CitationVol. 70 No. 7 Pg. 24-39
Publication year2001
Kansas Bar Journals
Volume 70.

70 J. Kan. Bar Assn. 7, 24-39 (2001). Governmental Immunity: Recent Developments Concerning the 11th Amendment and the Kansas Tort Claims Act

Kansas Bar Journal
70 J. Kan. Bar Ass'n, August 2001, 24-39 (2001)

Governmental Immunity: Recent Developments Concerning the 11th Amendment and the Kansas Tort Claims Act

Kevin J. Breer and Justin D. Pulikkan, Governmental Immunity: Recent Developments Concerning the 11th Amendment and the Kansas Tort Claims Act, J. Kan. Bar Ass'n August 2001, 24-39

By Kevin J. Breer and Justin D. Pulikkan

I. Introduction

Imagine the following two scenarios. A potential client comes to your office and tells you that she has been hurt. While playing basketball at ACME gym, a private corporation, she fell and broke her leg because the playing surface was wet from a soft drink spilled earlier that day. She also tells you that she makes a living dancing in the ballet and spends much of her time touring; dancing before audiences all over the world. You decide to take the case and attempt to collect damages from ACME. After taking depositions, filing interrogatories, requesting admissions, and discussing the facts with your experts, you determine that you have a good case and that you can successfully prove duty, breach, causation, and damages. Fortunately, ACME has deep pockets and will have the ability to pay if judgment is rendered against it. You feel fairly confident that you can recover compensation for your client.

Now imagine the same scenario, although instead of being at ACME gym, your client was playing basketball at the state university down the street from where she lives. What has changed? All of the other facts are the same and duty, breach, causation, and damages are still very provable. The difference is that the university has a "trump card" called immunity, which it may assert as an absolute[1] defense to liability, despite your ability to prove duty, breach, causation, and damages.[2]

While governmental immunity is nothing new, one merely has to look at a few recent cases to ascertain that new life has been breathed into the doctrine and that courts have been willing to find immunity for governmental entities more than ever in the last 100 years. Under the common law, courts historically held that "the king can do no wrong."[3] Over the years, however, courts and legislatures have limited the application of sovereign immunity, recognizing some of its inherent policy and historical weaknesses.[4] With the passage of the Kansas Tort Claims Act,[5] the Kansas legislature recognized some of the inherent problems with governmental immunity and made liability the rule and immunity the exception.[6] The United States Supreme Court over the last several years has, however, re-recognized sovereignty and given it new life.[7] The purpose of this article is to review recent cases involving both 11th Amendment immunity and immunity under the Kansas Tort Claims Act. While we will not discuss every case which has arisen in these areas, we will discuss several of the most recent decisions which we believe have had the biggest impact on Kansas law and which will shape Kansas law in the years to come.

II. 11th Amendment or "Sovereign Immunity"

The 11th Amendment states:

"The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or by Citizens or Subjects of any Foreign State."[8]

The 11th Amendment has historically been one of the more difficult and confusing areas of the law to understand.[9] Traditionally, 11th Amendment immunity was only raised in federal court.[10] The U.S. Supreme Court, in Alden v. Maine,[11] however, held that states have an inherent sovereign immunity which allows them to raise 11th Amendment immunity in their own courts. In Alden, the plaintiffs were a group of probation officers who had filed suit against the state of Maine, alleging violations of the Fair Labor Standards Act (FLSA). The suit was filed in state court after an earlier suit was dismissed in federal court. The state court suit was subsequently dismissed after the judge found that the state was entitled to sovereign immunity. The Maine Supreme Court affirmed, holding that the state had immunity from suit and that the immunity had existed since prior to the ratification of the U.S. Constitution. The U.S. Supreme Court agreed, and noted that although sovereign immunity was often called "11th Amendment immunity" the reference was "something of a misnomer" and that a state's sovereign immunity exists independently of the 11th Amendment.[12] After discussing the history of the Constitution and early case law, Justice Kennedy, writing for the court, stated:

"In light of the historical record it is difficult to conceive that the Constitution would have been adopted if it had been understood to strip the States of immunity from suit in their own courts and cede to the Federal Government a power to subject non-consenting States to private suits in these fora.

"[T]he powers delegated to Congress under Article I of the United States Constitution do not include the power to subject non-consenting states to private suits for damages in state courts."[13]

Sovereign immunity, according to Alden, has existed since prior to the ratification of the Constitution, although for convenience is referred to as 11th Amendment immunity.[14] The Alden Court further held that Congress did not have the authority under Article I of the Constitution to abrogate the States' inherent immunity.[15] As a result, the probation officers' suit was dismissed and the decision of the district court was affirmed.[16]

The ramifications of the Alden's "re-discovery" of sovereign immunity were recently applied when the Kansas Supreme Court considered Schall v. Wichita State University.[17] Schall involved a terminated Wichita State University (WSU) professor who filed claims alleging breach of the Americans with Disabilities Act (ADA), Family Medical Leave Act (FMLA), and breach of contract against the university.[18] Schall is unique because the federal claims were brought in state court as opposed to federal court, where they are more likely to appear.[19] WSU filed a motion for summary judgment, arguing that Schall failed to state a cause of action under either the ADA or the FMLA and that Schall had failed to exhaust his administrative remedies pursuant to the Kansas Judicial Review and Civil Enforcement of Agency Actions Act (KJRA)[20] on the breach of contract claim. WSU also raised sovereign immunity under the 11th Amendment as a defense. The district court granted the summary judgment motion, although all three issues were determined without consideration of the 11th Amendment immunity issue.

On appeal, the Kansas Supreme Court squarely addressed the 11th Amendment immunity issue.[21] As the Court in Schall noted, Kansas courts have historically held that 11th Amendment immunity did not apply to claims brought in Kansas state court.[22] Schall, applying the U.S. Supreme Court decision in Alden, however, was the first time 11th Amendment or sovereign immunity was applied in a Kansas state court.[23]

The court in Schall reviewed the Alden decision and held that Kansas has sovereign immunity from claims arising from federal legislation even when the claims are brought in state court. In Schall, the Kansas Supreme Court applied the 11th Amendment immunity or sovereign immunity analysis to the plaintiff's ADA and FMLA claims, while also discussing it in the context of the plaintiff's state law breach of contract claim. The court held that the state was immune from the plaintiff's FMLA claims as Congress had lacked authority to abrogate the immunity. The court did not specifically address whether Congress had abrogated the state's immunity on the ADA claim, because the plaintiff's ADA claim failed on a substantive basis and the issue of ADA abrogation was, at the time, before the U.S. Supreme Court.[24] The Court also held that WSU could not claim "11th Amendment" immunity on the breach of contract claim since WSU "consented to suit when it entered into the employment agreement with Schall." Schall, therefore, provides an avenue of defense for the state and a formidable obstacle to overcome for plaintiffs attempting to sue the state.[25]

The court in Schall acknowledged, however, that sovereign immunity may be "relinquished" where (1) the state consents to the suit; (2) where Ex parte Young[26] is appropriate; or (3) where Congress has abrogated the sovereign immunity.

The reasoning in Schall was applied a few months later when the Kansas Supreme Court decided Goldbarth v. Kansas Board of Regents.[28] In Goldbarth, the plaintiff, who was a professor at WSU, had been accused of sexual harassment by two female students, and subsequently brought suit against the Kansas State Board of Regents, the university, and two administrators alleging violations of due process, First Amendment rights, defamation, and negligent retention.[29] The defendants filed a motion for summary judgment, which the trial court granted. Although the defendants did not raise sovereign immunity at the trial court level, the Goldbarth court independently addressed the issue since it was an issue of jurisdiction which the court can review at any time.[30] The Goldbarth court applied Schall and Alden in holding that WSU and the Board of Regents were both immune from the plaintiff's First Amendment claims since they are both "essentially" the state of Kansas and they had not waived their "11th Amendment" sovereign immunity.[31]

Schall and Goldbarth significantly alter the way cases involving the state will be litigated in Kansas. Both Schall and Goldbarth signify that "11th Amendment" sovereign immunity can be raised in state...

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